AJAY KUMAR @ BITTU & ANR. versus STATE OF UTTARAKHAND & ANR.

[2021] 1 S.C.R. 191

AJAY KUMAR @ BITTU & ANR.

STATE OF UTTARAKHAND & ANR.

(Criminal Appeal No. 88 of 2021)

JANUARY 29, 2021

[ASHOK BHUSHAN, R. SUBHASH REDDY,M. R. SHAH, JJ.]

Code of Criminal Procedure, 1973:

s. 319 – Application under – Appellants summoned by orderdated 17.8.2019 – As the appellants did not appear before the Court,bailable warrant issued on 5.9.2019 and non-bailable warrantissued on 18.9.2019 issuing notice u/s. 446 Cr. P.C. – CriminalRevision by appellants against order dated 17.8.2019 – High Courtdismissed the Revision on the ground that there was concealment offact as order dated 18.9.2019 was not placed on record – Appealto Supreme Court – Held: Power u/s. 319 is extra-ordinary anddiscretionary and has to be exercised sparingly – High Court didnot consider the correctness of order dated 17.8.2019 – Thesubsequent proceedings cannot be ground to not consider thecorrectness and validity of order dated 17.8.2019 – Order of Highcourt is unsustainable – The High Court is directed to consider theRevision afresh in accordance with law.

Allowing the appeal, the Court

HELD : 1. Power under Section 319 Cr.P.C. is adiscretionary and extra-ordinary power which has to be exercisedsparingly. The test that has to be applied is one which is morethan prima facie case as exercised at the time of framing of charge,but short of satisfaction to an extent that the evidence, if goesunrebutted, would lead to conviction. [Para 5][195-G-H; 196-A]

Hardeep Singh v. State of Punjab and others (2014) 3SCC 92 : [2014] 2 SCR 1 – followed.

Rajesh and Others v. State of Haryana (2019) 6 SCC368 : [2019] 8 SCR 187 – relied on.

A2.1 perusal of the judgment of the High Court indicatesthat the High Court did not examine the correctness of the orderdated 17.08.2019 by which the appellants were summoned byAdditional District Judge under Section 319 Cr.P.C., rather hasdismissed the Criminal Revision on the basis of subsequentfact i.e. order dated 18.09.2019 by which notice has been issuedBunder Section 446 Cr.P.C.. The High Court further took the viewthat since the proceedings in pursuance of Section 319 Cr.P.C.have already been initiated and that no simultaneous challengeto the impugned order dated 17.08.2019 summoning therevisionists under Section 319 Cr.P.C. would be tenable beforeCthe High Court till the order dated 18.09.2019 passed inproceedings at the behest of revisionist subsist. [Para 8][197-G-H; 198-A-B]

2.2 The order sheet dated 05.09.2019 indicates thatalthough the summons was served on the appellants but theyDhave not appeared, hence, bailable warrant was issued againstthe appellants. Subsequently on 18.09.2019 non-bailable warrantswere issued. The proceedings on 05.09.2019 and 18.09.2019 areproceedings consequent to and subsequent to the order dated17.08.2019 by which appellants were summoned. The subsequentproceeding in no manner can be ground to not consider theEcorrectness and validity of order dated 17.08.2019. High Courtcompletely erred in refusing to consider the correctness of theorder dated 17.08.2019 on the ground that on 18.09.2019 noticeunder Section 446 Cr.P.C. has been issued. As and when it isfound that order dated 17.08.2019 could not have been passed in

Fexercise of jurisdiction under Section 319 Cr.P.C., all subsequentproceedings thereto shall automatically come to an end. The orderdated 18.09.2019 by which the Court has directed appearance ofthe accused-appellant, is to be taken to its logical end but thatorder cannot provide shield of protection to earlier order dated17.08.2019 by which appellant has been summoned. [Paras 9,G10, 11 and 13][198-B-C; F-G; 199-F-H; 200-B-C]

3. The subsequent proceedings of the court which havebeen brought on record indicate that the appellant Nos. 2 and 1have appeared before the Court and have also been granted bail.[Para 14][200-C]H

4. One of the grounds taken in this appeal is that appellantNo.1 is Juvenile at the date of incident, his Date of Birth being01.04.2000. The above ground also needs to be considered bythe High Court. The Criminal Revision of the appellants beconsidered afresh by the High Court in accordance with the law.[Paras 15 and 16][200-D-E]

Case Law Reference

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 88 of 2021.

From the Judgment and Order dated 27.09.2019 of the High Courtof Uttarakhand at Nainital in Crl. Revision No. 570 of 2019.

Vinay Arora, DAG, Pradeep Gupta, Parinav Gupta, Ms. MansiGupta, Krishna Kumar, Ms. Nandani Gupta, Dr. (mrs.)Vipin Gupta, RanbirDSingh Yadav, Prateek Yadav, Mrs. Pratima Yadav, Advs. for the appearingparties.

The Judgment of the Court was delivered by

ASHOK BHUSHAN, J. Leave granted.

2. This appeal has been filed against the judgment of the HighCourt of Uttarakhand dated 27.09.2019, by which judgment High Courthad dismissed the Criminal Revision filed by the appellants. The CriminalRevision was filed by the appellants against the order dated 17.08.2019passed by Additional District Judge, Laksar, by which the appellantswere summoned by the Court under Section 319 Cr.P.C.

3. Brief facts of the case necessary to be noted for deciding thisappeal are:-

i.The appellant was made an accused in FIR No.175/2015 atPolice Station Kotwali, Laksar, Haridwar, under Section 147,148, 149, 323, 324, 307, 452, 504 and 506 IPC along with sixother accused. An FIR No.176/2016 was also registered inthe same Police Station under Section 147, 148, 149, 307,452, 504, 506 IPC in which the complainant with otheraccused were arrayed. The Police after carrying out the

194SUPREME COURT REPORTS

investigation submitted chargesheet exonerating theappellants. Investigation officer after investigation expungedthe names of Bittoo and Jyoti, the appellants from the list ofaccused from the chargesheet.

ii.The Trial began in case No.228 of 2016 in which informantBPahal Singh was examined as PW-1. In his Statement, PahalSingh implicated all accused including the appellants but nospecific role was assigned to the appellants. Statement wasalso recorded by PW-2, Monu, in which he implicated theappellants. An application under Section 319 Cr.P.C. wasfiled by the informant before the Session Judge praying thatCappellant be also summoned in the case. Learned SessionJudge after noticing in detail the statements made by PW-1and PW-2 made in the Court rejected the application by orderdated 21.06.2018. Against the order dated 21.06.2018, PahalSingh, the informant, filed the Criminal Revision No.304 ofD2018 before the High Court.

iii.The High Court relying on the judgment of this Court reportedin Rajesh and others versus State of Haryana, (2019) 6SCC 368, allowed the Revision and directed the applicationunder Section 319 Cr.P.C. to be considered afresh. FollowingEis the operative portion of the order passed by the High Courtin paragraph 7;

“7. After having considered the aforesaid ratio and alsothe reasons which have been assigned by the AdditionalSessions Judge, Laksar, Haridwar, this Court is of theview that the revision deserves to be allowed and thesame is consequently allowed. The order dated21.06.2018 passed by the learned Additional SessionsJudge, Laksar, District Haridwar in Sessions Trial No.228of 2016, State v. Chandra Pal and others is quashed.The matter is remitted back to the Additional SessionsJudge, Laksar, District Haridwar, to reconsider theapplication paper No.53 (ka/1) in the light of ratio aspropounded by the Hon’ble Apex Courts Judgment inRajesh’ case (Supra).”

iv.After the Order of the High Court dated 11.07.2019 in theACriminal Revision, Learned Session Judge again consideredthe application under Section 319 Cr.P.C. Learned SessionJudge referring to the observations made by the High Courtin paragraph 5 as well as the judgment of this Court in Rajeshand others versus State of Haryana(Supra) allowed theBapplication and summoned the appellants by Order dated17.08.2019. The Trial Court issued bailable warrant againstthe appellants on 05.09.2019 and after bailable warrant beingserved when they did not appear on 18.09.2019, Non-Bailablewarrant was issued to the appellants and Notice underSection 446 Cr.P.C. was issued as to why the amount ofCsureties being not realised from two sureties Arun Kumarand Chandra Pal. The appellants filed Criminal Revisionbefore the High Court against the order dated 17.08.2019 ofthe Additional Session Judge summoning them.

v.The High Court dismissed the Revision noticing subsequentorder dated 18.09.2019 by which notice has been issued underSection 446 Cr.P.C. The High Court took the view that theRevision was filed on 23.09.2019 but the order passed by theCourt on 18.09.2019 has not been brought on record, hence,there is concealment of not placing the order on record. TheHigh Court further observed that since the proceeding inpursuance to allowing the application under Section 319Cr.P.C. has already been initiated, in which the revisionistshave already invoked the jurisdiction of the Revisional Courtin which order dated 18.09.2019 has been passed, the Revisionis to be dismissed. Aggrieved by the order of the High Courtdated 27.09.2019, this appeal has been filed.

4. We have heard the learned counsel for the parties and haveperused the record.

5. The principles for exercise of power under Section 319 Cr.P.C.by Criminal Court are well settled. The Constitution Bench of this Courtin Hardeep Singh versus State of Punjab and others, (2014) 3 SCC92, has elaborately considered all contours of Section 319 Cr.P.C. ThisCourt has held that Power under Section 319 Cr.P.C. is discretionaryand extra-ordinary power which has to be exercised sparingly. This Courtfurther held that the test that has to be applied is one which is more than

Aprima facie case as exercised at the time of framing of charge, butshort of satisfaction to an extent that the evidence, if goes unrebutted,would lead to conviction. In paragraph 105 and 106, following has beenlaid down: -

”105. Power under Section 319 CrPC is discretionary and anBextraordinary power. It is to be exercised sparingly and only inthose cases where the circumstances of the case so warrant. It isnot to be exercised because the Magistrate or the Sessions Judgeis of the opinion that some other person may also be guilty ofcommitting that offence. Only where strong and cogent evidenceoccurs against person from the evidence led before the CourtCthat such power should be exercised and not in casual and cavaliermanner.

106. Thus, we hold that though only prima facie case is to beestablished from the evidence led before the court, not necessarilytested on the anvil of cross-examination, it requires much strongerDevidence than mere probability of his complicity. The test that hasto be applied is one which is more than prima facie case asexercised at the time of framing of charge, but short of satisfactionto an extent that the evidence, if goes un-rebutted, would lead toconviction. In the absence of such satisfaction, the court shouldErefrain from exercising power under Section 319 CrPC. In Section319 CrPC the purpose of providing if “it appears from the evidencethat any person not being the accused has committed any offence”is clear from the words “for which such person could be triedtogether with the accused.” The words used are not “for whichsuch person could be convicted”. There is, therefore, no scopeFfor the court acting under Section 319 CrPC to form any opinionas to the guilt of the accused.”6. The Two-Judge Bench of this Court again reiterated the sameratio in Rajesh and others versus State of Haryana (Supra) whichjudgment has also been relied by the High Court in the impugnedGjudgment.

7. Now we may notice the reason which persuaded the HighCourt to reject the Revision. After noticing the facts of the case, theHigh Court proceeded to consider the revision and recorded its reasonfor dismissing it in following words: -H

“Although reference has been made in paragraph 10 of theapplication filed in support of the revision to the effect that theproceedings was taken by the present revisionists before theSessions Court and an order of 18.09.2019 has been passed,whereby, the notices have been issued to the present revisionistsunder Section 446 of Cr.P.C.

This order passed by the Court below is that of 18.09.2019.the copy of the said order was received by the revisionists on21.09.2019, as would be apparent from the folio annexed with thecertified copy of the order dated 18.09.2019 as supplied by thelearned counsel for the revisionist during the course of argumentsto this Court, though it is not part of the Criminal Revision.

The revision itself was filed on 23.09.2019. The said orderpassed by the Court under Section 446, has not been brought onrecord. Hence, this Court is of the view that apart from the factthat there is concealment by not placing the order on record,which otherwise has been procured by the revisionist prior to thefiling of the revision and furthermore, since the proceedings inpursuance to allowing the application under Section 319 CrPChas already been initiated, in which the revisionist has alreadyinvoked the jurisdiction of the Revisional court, in which the orderdated 18.09.2019 has been passed.

In view of the already ongoing proceedings before the SessionsCourt prior to the filing of the present revision, this court is of theview that no simultaneous challenge to the impugned order dated17.08.2019 summoning the revisionists under Section 319 of CrPCwould be tenable before this Court till the order dated 18.09.2019,passed in the proceedings at the behest of the present revisionist,subsist.

Consequently, this revision lacks merit and the same is dismissedas it is not sustainable before this Court.”

8. perusal of the judgment of the High Court indicates that theHigh Court did not examine the correctness of the order dated 17.08.2019by which the appellants were summoned by Additional DistrictJudge under Section 319 Cr.P.C., rather has dismissed the CriminalRevision on basis of subsequent fact i.e. order dated 18.09.2019 bywhich notice has been issued under Section 446 Cr.P.C. The High Court

ABC

Afurther took the view that since the proceedings in pursuance of Section319 Cr.P.C. have already been initiated and that no simultaneouschallenge to the impugned order dated 17.08.2019 summoning therevisionists under Section 319 Cr.P.C. would be tenable before the HighCourt till the order dated 18.09.2019 passed in proceedings at the behestof revisionist subsist.

9. We may now notice the nature of the proceedings subsequentto the order dated 17.08.2019 by which the appellants were summoned.The appellant has brought on record the order sheet of the Court alongwith the application for additional documents. The order sheet indicatesthat although the summons was served on the appellants but they haveCnot appeared, hence, bailable warrant of Rs.10,000/- was issued againstthe appellants. Order dated 05.09.2019 is to the following effect:-

“Sd/- illegible05.09.2019Arun KumarDRecord is produced. Accused SandeepC n r p lappearance dispensed through his counselSingh JitenderKashim Ansari. Allowed. Remaining accusedGautamArun, Chandrapal, Jitender and Gautam arepresent. Summon is duly served on accusedJyoti and Bittu. Accused Jyoti and Bittu areEabsent. The bailable warrant of Rs.10,000/-be issue against Jyoti and Bittu for 18.09.2019.Sd/- illegibleAmbika PantFAdditional Session Judge Laksar,District Haridwar.”10. Subsequently on 18.09.2019 the case was again taken by theAdditional District Judge and following order was passed:-Sd/- illegible18.09.2019GArun KumarThe file is produced. Accused ChandrapalC n r p lGautam, Jitender and Sandeep are present.Singh JitenderGautamThe Bailable warrants issued against accusedJyoti and Bittu are returned after being served.H

Accused Jyoti and Bittu are absent even afterservice of Bailable warrants. Therefore, nonbailable warrants are issued against Jyoti andBittu to ensure their presence.Accused Jyoti and Bittu are not beingBproduced before the Court inspite of suretiesgiven by the guarantors. The surety of accusedBittu is Accused Arun Kumar and the suretyof accused Jyoti is her father accusedChandrapal and the another surety is accusedArun. Both of them are present in the Court.CTherefore, the Bail bonds executed by themare forfeited for not producing Accused Bittuand Jyoti before the Court. Therefore, noticeunder section 446 CrPC is being issued withthe intent that why the amount if surety beDnot realized from them. The case be producedfor appearance of accused Jyoti and Bittu andfor the explanation by the guarantors on30.09.2019.Sd/- illegibleEAmbika PantAdditional Session Judge Laksar,District Haridwar.”

11. The proceedings which were taken on 05.09.2019 and18.09.2019 are proceedings consequent to and subsequent to the orderdated 17.08.2019. The subsequent proceeding in no manner can be aground to not consider the correctness and validity of order dated17.08.2019. We are of the considered opinion that the High Courtcompletely erred in refusing to consider the correctness of the orderdated 17.08.2019 on the ground that on 18.09.2019 notice under Section446 Cr.P.C. has been issued. As and when it is found that order dated17.08.2019 could not have been passed in exercise of jurisdiction underSection 319 Cr.P.C., all subsequent proceedings thereto shallautomatically come to an end.

A12. The view of the High Court which is recorded in followingwords:-

“…this court is of the view that no simultaneous challenge tothe impugned order dated 17.08.2019 summoning therevisionists under Section 319 of Cr.P.C. would be tenableBbefore this Court till the order dated 18.09.2019, passed in theproceedings at the behest of present revisionist, subsist.”

cannot be said to be correct view.

13. The order dated 18.09.2019 by which the Court has directedappearance of the accused appellant is to be taken to its logical end but Cthat order cannot provide shield of protection to earlier order dated17.08.2019 by which appellant has been summoned.

14. The subsequent proceedings of the court which have beenbrought on record indicate that the appellant no.2 and 1 have appearedbefore the Court and have also been granted bail. .D

15. One of the grounds taken in this appeal is that appellant No.1is Juvenile at the date of incident, his Date of Birth being 01.04.2000.The above ground also needs to be considered by the High Court.

16. We thus are of the view that the impugned judgment of the

High Court dated 27.09.2019 is unsustainable and deserves to be setEaside. We order accordingly. The Criminal Revision of the appellants beconsidered afresh by the High Court in accordance with the law. Theappeal is allowed.

Kalpana K. Tripathy

Appeal allowed.